February 10, 2006

The Undergraduate Legal Studies Program and
the Institute for Legal Studies at the Law School
announce the following Harris Lecture and panel discussion
open to faculty, students, and the public:

Is the Second Amendment Still Embarrassing (and for Whom)?

by
Sanford Levinson
Noted Second Amendment and Constitutional Scholar
University of Texas School of Law

Friday, February 17, 2006 at 4:00 p.m.
Godfrey and Kahn Hall (Room 2260)
University of Wisconsin Law School

This lecture is made possible through the generous support
of the Audrey J. Harris Legal Studies Endowment.

The lecture will be followed by a panel discussion moderated by Donald Downs, Professor of Political Science, Law, and Journalism and Director of the Legal Studies Program and the Criminal Justice Certificate Program. Panelists include Ann Althouse, Robert W. and Irma Arthur-Bascom Professor of Law; John Sharpless, Professor of History; and Howard Schweber, Assistant Professor of Political Science.

Sanford Levinson (JD 1973, Stanford; PHD 1969, Harvard; AB 1962, Duke University) is the W. St. John Garwood and W. St. John Garwood, Jr. Centennial Chair in Law and Professor of Government at The University of Texas at Austin School of Law. He joined the University of Texas Law School in 1980. Previously a member of the Department of Politics at Princeton University, he is also a Professor in the Department of Government at the University of Texas. The author of over 200 articles in professional and more popular journals, Levinson is also book author of Constitutional Faith (1988, winner of the Scribes Award); Written in Stone: Public Monuments in Changing Societies (1998); and Wrestling With Diversity (2003). Most recently, he was the editor of Torture: A Collection (Oxford University Press, 2004), which includes reflections on the morality, law, and politics of torture from a variety of disciplinary perspectives. He has also edited Responding to Imperfection: The Theory and Practice of Constitutional Amendment (1995), and co-edited Reading Law and Literature: A Hermeneutic Reader (1988, with Steven Mallioux); Constitutional Stupidities, Constitutional Tragedies (with William Eskridge, 1998); Legal Canons (with Jack Balkin, 2000), and a leading constitutional law casebook, Processes of Constitutional Decisionmaking (4th ed. 2000, with Paul Brest, Jack Balkin, and Akhil Amar). He has visited at the Harvard, Yale, New York University, and Boston University law schools, as well as at the University of Paris II, Central European University in Budapest, and the Hebrew University in Jerusalem. A member of the American Law Institute, Levinson was elected to the American Academy of Arts and Sciences in 2001.

Levinson wrote a famous article called "The Embarrassing Second Amendment." You can read it here. His concluding paragraph:

"For too long, most members of the legal academy have treated the Second Amendment as the equivalent of an embarrassing relative, whose mention brings a quick change of subject to other, more respectable, family members. That will no longer do. It is time for the Second Amendment to enter full scale into the consciousness of the legal academy. Those of us who agree with Martha Minow's emphasis on the desirability of encouraging (p.659)different "voices" in the legal conversation[100] should be especially aware of the importance of recognizing the attempts of Mr. Donaldson and his millions of colleagues to join the conversation. To be sure, it is unlikely that Professor Minow had those too often peremptorily dismissed as "gun nuts" in mind as possible providers of "insight and growth," but surely the call for sensitivity to different or excluded voices cannot extend only to those groups "we" already, perhaps "complacent[ly]," believe have a lot to tell "us."[101] I am not so naive as to believe that conversation will overcome the chasm that now separates the sensibility of, say, Senator Hatch and myself as to what constitutes the "right[s] most valued by free men [and women]."[102] It is important to remember that one will still need to join up sides and engage in vigorous political struggle. But it might at least help to make the political sides appear more human to one another. Perhaps "we" might be led to stop referring casually to "gun nuts" just as, maybe, members of the NRA could be brought to understand the real fear that the currently almost uncontrolled system of gun ownership sparks in the minds of many whom they casually dismiss as "bleeding-heart liberals." Is not, after all, the possibility of serious, engaged discussion about political issues at the heart of what is most attractive in both liberal and republican versions of politics?"

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

Like so much of the Constitution, that's just meaningless gibberish. That's why lawyers have been able to argue about what it means for two centuries without reaching any conclusion. The people who should be embarrassed are those who wrote it, but they're past caring.

I never realized how many people felt this way about the Second Amendment until I took the bar exam in 2004. The last of the twelve essay questions was the Constitutional Law question, which had been nearly guaranteed by the test preparers to be either commerce clause or freedom of speech. When the hundreds of people in the convention center turned to the last question all nearly at the same time, you could hear LOUD gasps from all over the room. The ConLaw question was an extremely bizarre question about the manufacture and sale of build-your-own-missle-launcher kits. After the exam, the general grumblings fell into "only in Arizona would they ask us this" or "which one is the Second Amendment again?"

I found the reaction annoying - the Second Amendment is as much a part of the Constitution as the First one. It's enouch to make you want to grab an AK and head out into the desert for some target shooting.

Thanks for calling this to my attention. I hope to be there.As a reporter, I obviously had to read a bunch of first amendment cases while in college so I know what the courts have ruled from time to time.It always made me wonder, as we debate gun congrol issues, what exactly the courts have ruled over the years. Maybe I'll be able to find out.

I need glasses, I thought it was the right to free speech that was embarrassing so many people, like the buffoonery over false religious prophets. I got embarrassed when I read about the Swedish government shutting down a web site that showed cartoons of mohammed. No wonder the nazis were able to occupy Sweden in just under 20 minutes. I'm drifting a bit. For extreme Leftists that worry so much about Adolph Bush taking control of the entire nation in one grand right wing coup, they sure want to concentrate guns in the hands of just one element of society, the police and military, don't they? Hmmm, they must be banking hard on Hillary and Howie being the next White House couple. Can't you just hear Howie shrieking over the presence of guns in American homes?? I'm really drifting now, sorry.

Am I incorrect in thinking that Alex Kozinski said almost the same thing a few years ago- something about not treating the Second Amendment like a senile old relative we ignore and keep in the back of the house. Or was I just attributing the Levinson quote to Kozinski?

Uh, Goesh, Sweden was never occupied by the Nazis. It remained neutral throughout the war.

Frankly, I suspect that most folks who carry guns are more polite than the unarmed citizens in general. Why? Because we know damned well what our rights and responsibilities are. If we don't try our best to de-escalate any situation we will be both criminally and civilly liable.

There are very few gun crimes committed by legal gun owners or CCW permit holders.

In Silveira v. Lockyer Kozinski said: "It is wrong to use some constitutional provisions as springboards for major social change while treating others like senile relatives to be cooped up in a nursing home until they quit annoying us."

The second ammendment in itself isn't embarrassing. Some of the conduct it's used to protect is unfortunate.

What is it used to protect? As far as I know the courts don't really enforce the second amendment much, and even if they did, it gives you the right to keep and bear arms, not the right to use them to terrorize your fellow citizens.

Anonlawstudent - What conduct is embarassing that the Second Amendment protects? Legal registered gun ownership by the law abiding public? Which in turns protects law and order and the right to be secure in your person by deterring crime?

This is going to be great. I met Sharpless at a scotch tasting at Barriques on Monroe St. He is a funny and smart guy. I will do everything I can to be there..."still embarassing"? Never was, never will be.

I took a couple classes from Sandy. Fabulous teacher, and one of the most accessible professors (for students) that I've ever encountered. One of his pet beliefs was that the Supreme Court could use some non-legal (but skilled in other disciplines) blood, to give it an expanded view of the American landscape. If the conversation gets around to it, ask him what he thought of the Harriet Miers thing; whether this was a step in the direction which he envisioned, and whether he still thinks the Court could benefit by a broader Weltanschauung?

Boy do I miss Prof. Downs. He was a really great, really unique guy - quite libertariam, which I found refreshing, though also very practical. Best of all, he really enjoyed talking to the students. He would sit in the lakefront cafe and you could just go talk to him about anything. His privacy law seminar was outstanding, and we had some great conversations as he walked to his car and I to my dorm. His principled stance on abolishing the campus speech codes earned my undying respect.

Schweber was a really interesting guy too. I suspected he was rather diffrent politically, but I really liked his Con Law class because he did not tolerate sloppy thinking from anybody. I remember he almost made a girl cry by telling her that her feelings were not a valid argument - even though he probably would have agreed with her statements. Every time I hear Tom Cruise say, "it doesn't matter what I believe, it only matters what I can prove!" I think of him. Too bad Prof. Lester Hunt from the philosophy department isn't going to be there. Now HE seemed like a hard-core libertarian (taught classes on Ayn Rand as I recall, I took his seminar on Legal Philosophy).

Man, all those undergraduate legal classes were so much more enjoyable than my law school classes, because they focused on depth rather than breadth - really a lot of time for discussion and philosophizing. I do miss those days.

There is nothing embarrassing about the militias. The National Guard is currently training the Afghan national army, guarding terrorists in Guantanamo Bay, and fighting in Iraq. Last year, they responded to Katrina.

Regardless of how one feels about the Second Amendment I assure that it is embarassing to many of the more liberal persuasion.

First, it foeces them to argue that an egg is a paper clip by the application of legal logic.

Second it stigmatizes them as belonging to a less cultured society -- something like having someone over and having to excuse yourself to have to go shoot a squirrel so there is something in the pot for dinner (sorry, Ann).

Finally, it will sooner or later lead to a display of abysmal technical ignorance, much as I squirm a bit when someone starts discussing modern art.

"The embarrasing part is that some people try to use the infamous preamble to invalidate the entire right."

Some of us call that textualism -- the presumption that there aren't any words in the constitution that don't matter in determining its scope. In the rare case that the Framers give us a statement of purpose, it seems sensible to us that statement to delimit the scope of the right. (Obviously, not to eliminate it entirely -- just to give it meaning).

The fine Americans in Afghanistan and Guantanamo are members of _a_ militia, but not necessarily _the only_ militia. (If you want to get technical I suppose they ceased being a militia when they were federalized for overseas duty in their capacity as members of the US armed forces. Service outside the US is not one of the enumerated tasks the that the President is allowed to order the militia to do, so in Afghanistan they would be members of the US Army Reserve &c..)

Many states have "state guard" units separate and distinct from the NG that are closer to the original conception of an organized militia; they are not also enrolled in the US armed forces.

In the original conception "the militia" roughly corresponded to the electorate. See Madison in Federalist #46.

My point was, Marghlar, that whatever the justification for the creation of the right (as outlined in the preamble), the second clause is clear: the right of the people to keep and BEAR Arms shall not be infringed.

The amendment does not say the right of the Militia or the right of the State. It says the right of the people.

The preamble may very well be WHY the founders established the right, but the right itself is in no way limited by the preamble.

I'm not sure how you could interpret it as being limiting.

Would you argue that if a State's militia was "badly regulated" all the guns in that state could be seized?

That would seem to be a logical conclusion of holding that the first clause was functioning as a conditional.

In the rare case that the Framers give us a statement of purpose, it seems sensible to us that statement to delimit the scope of the right.

Well, thankfully, we don't have to speculate about the meaning of the word "militia." It is in fact defined in 10 USC 311(a):

(a) The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard.

So I suppose that under your interpretation of the binding preamble, of civilians, only males between the ages of 17-45 have the right to keep and bear arms. Sorry, ladies!

In reference to the first clause of the second amendment, I seem to recall the petitioners in Eldred v. Ashcroft attempting to make the argument that "to promote the progress of science and useful arts" imposed limits on Congress' power to pass copyright legislation, and the court rejected their argument.

So I don't think it's unreasonable to suggest that the first clause of the second amendment, which states its purpose, is any real limitation of the "right of the people to keep and bear arms" outlined in the second clause.

At the time the Second Amendment was enacted, the word "militia" meant a universally armed people ready to stand in defense of their nation. Many of the early colonies actually required by law that every adult male provide himself with a musket. This requirement was carried over in the Mililtia Act of 1792.

If a "regulated" militia is made up of an armed citizenry, it stands to reason that the "people" must have a right "to keep and bear arms".

Purpose of the Amendment is clear; it is to protect the peoples' inherent right to protect themselves against tyranny.

One good place to find a lot of 2nd Amdt. stuff is on the personal sites of some of the Volokh.com conspirators. Eugene, for one, started as believing that the 2nd Amdt. was a collective right, etc., and very quickly came to the opposite conclusion. He has a lot of 2nd Amdt. stuff, including a bunch of law review articles, as well as teaching law school classes in 2nd Amdt. But, as noted, the Volokh conspirators are pretty much in favor of a pro-individual 2nd Amdt. rights interpretation. You need to go elsewhere for the collective rights arguments.